52:0082(7)AR - - AFGE, Local 4015 and Navy, Norfolk Naval Shipyard, Portsmouth, Virginia - - 1996 FLRAdec AR - - v52 p82
[ v52 p82 ]
The decision of the Authority follows:
52 FLRA No. 7
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
August 20, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on an exception to a supplemental award of Arbitrator Jerome H. Ross filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.
In the supplemental award, the Arbitrator denied the Union's motion for attorney fees. For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.
II. Background and Arbitrator's Awards
The grievants were involuntarily downgraded pursuant to a reduction in force (RIF) and were accorded grade and pay retention for a period of 2 years from the date of the RIF. Approximately 1 year after the RIF, the Agency filled bargaining unit positions at the grade level of positions from which the grievants were downgraded. The Union filed a grievance protesting the Agency's failure to accord the grievants priority consideration for the positions. In his original award, the Arbitrator found that, as the grievants had been accorded grade and pay retention, they were entitled under an Agency regulation that had been negotiated with the Union to priority consideration for the disputed positions. The Arbitrator concluded that the Agency's failure to accord the grievants priority consideration violated that regulation and, as his remedy, ordered the Agency to accord the grievants priority consideration for the disputed positions.
Subsequently, the Union filed a request for attorney fees with the Arbitrator, which was opposed by the Agency. In the supplemental award, the Arbitrator stated that the question before him was:
[W]hether an award of back pay has been issued for the purposes of qualification for attorney fees under the Back Pay Act?
Supplemental Award at 3.
The Arbitrator found that, because his original award granted the grievants only priority consideration for the disputed positions, and did not require the Agency to appoint the grievants to the positions, the grievants "d[id] not qualify for back pay under the Back Pay Act." Id. at 5. Therefore, the Arbitrator denied the Union's request for attorney fees.
A. Union's Contention
The Union asserts that the "mere fact [that] the grievants . . . may not receive actual backpay is irrelevant" to determining whether they are entitled to attorney fees. Exception at 3. According to the Union, "some of the grievants will be repromoted as a direct result" of the award, id., and a denial of fees on the ground that backpay is not now payable is inconsistent with Maney v. Department of Health and Human Services, 637 F. Supp. 1128 (D.D.C. 1986) (Maney).
B. Agency's Opposition
The Agency argues that, in the absence of backpay, no award of attorney fees can be granted. The Agency contends that the possibility of future losses is not equivalent to backpay.
IV. Analysis and Conclusions
A threshold requirement for an award of attorney fees under the Back Pay Act is a finding that a "grievant was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials and a grant of such pay, allowances, or differentials." American Federation of Government Employees, Local 2419 and U.S. Department of Health and Human Services, National Institutes of Health, Division of Engineering Services, Maintenance Engineering Branch, 50 FLRA 128, 130 (1995) (citation omitted).
In this case, the Arbitrator ordered the Agency only to provide the grievants priority consideration; the Arbitrator did not award backpay. As the grievants were not awarded backpay, the Arbitrator properly concluded that they were not eligible for an award of attorney fees under the Back Pay Act. See id. In this regard, we reject as unsup